REVISED UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

____________

No. 96-31181 ____________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

MICHAEL O’KEEFE, SR; ERIC SCHMIDT; JOHN O’BRIEN; GARY BENNETT; PAUL SCHMITZ,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana

November 11, 1997 Before WISDOM, JOLLY and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The United States appeals the district court’s order granting

a new trial and its denial of the government’s motions for

reconsideration of its order granting a new trial and to enforce

the recusal of Chief Judge Morey L. Sear following the convictions

of Michael O’Keefe, Sr., Eric Schmidt, John O’Brien, Gary Bennett,

and Paul Schmitz (collectively “O’Keefe”). We vacate the order

granting a new trial and remand to the district court to consider

O’Keefe’s remaining arguments, as yet unaddressed, for new trial.

We deny the government’s request to remand this case to a judge outside the Eastern District of Louisiana.

I

We briefly outline the facts of this case insofar as they are

relevant to this appeal, largely concerning procedural matters.

O’Keefe operated the management company of Physicians National Risk

Retention Group (“PNRRG”), a Louisiana medical malpractice insurer,

and the other defendants were involved with the company in various

capacities. When PNRRG became insolvent and the state of Louisiana

moved to have it liquidated, the defendants arranged to have

Builders and Contractors Insurance, Limited (“BCI”), a Bahamian

corporation run by Charles Donaldson, act as a reinsurer. Various

assets of PNRRG were taken out of PNRRG’s estate to cover

liabilities and claims that were transferred to BCI, and put in the

trust account of O’Keefe’s law firm on behalf of BCI. Ultimately,

a large portion of these assets of PNRRG found their way into the

personal bank accounts of the defendants through a complex scheme

found by the jury to be fraudulent.

In a series of indictments listing differing factual bases

whose relevance we shall discuss later, a grand jury charged

O’Keefe and the other defendants with multiple crimes, including

conspiracy, wire fraud, mail fraud, and money laundering. The two

main government witnesses were Donaldson and Johnny Moore,

participants in the scheme. During pre-trial preparation, a

Federal Bureau of Investigation (“FBI”) 302 report1 was prepared

1 An FBI 302 report is a typed transcription of the notes of an FBI agent’s interview with a witness, usually prepared for testimony of a witness who may be presented at trial.

-2- from the notes of FBI Special Agent Phillips based on a telephone

interview between Donaldson, his attorney, government prosecutors,

Phillips and other law enforcement personnel. According to the

transcribed FBI 302 report of this interview, someone stated that

“O’Keefe suggested that BCI’s shareholders meeting minutes be

altered to make it appear that Donaldson had authority to enter

into the PNRRG/BCI contract” (the “minutes”). It is unclear who

made this statement, but when Donaldson later pled guilty in the

U.S. District Court for the Middle District of Louisiana to one

count of mail fraud in exchange for his testimony in this case, the

prosecutors incorporated this statement into the factual basis of

the guilty plea in such a way as to make it appear that Donaldson

made the statement.

During the trial against O’Keefe before Chief Judge Sear and

immediately prior to Donaldson’s direct testimony, the government

provided a copy of the FBI 302 report to the defense, pursuant to

the Jencks Act,

et. seq. On direct questioning,

the government did not ask any questions concerning the minutes,

but when one of the defense attorneys questioned Donaldson about

the minutes on cross-examination, Donaldson admitted to accusing

O’Keefe falsely of participating in the alteration of the minutes.2

2 The following colloquy occurred between Simmons, the attorney for O’Keefe, and Donaldson, on cross-examination:

Q: Did you tell anyone that Mr. O’Keefe had created those minutes of December ‘88 by the addition of the words “five years thereafter.” A: I don’t recall. I--I know that I admitted I said that I created--I put them in myself.

-3- Q: That’s not my--my question. Let me rephrase it. A: Did--did I tell anyone that he suggested that? I-I can’t recall if I did.

* * *

Q: Since you’ve started cooperating with the Government, when you’re supposed to be truthfully, have you ever told anyone that Mr. O’Keefe created those minutes of December 1988? And by create I mean adding the five years thereafter? A: I don’t think so. I may have.

Q: You may have? A: Yes, I can’t recall. Was that a clear answer? I can’t recall.

Q: You’re suggesting that you may have accused him of creating documents that you created? A: I said I can’t recall.

* * *

Q: Isn’t it a fact, Mr. Donaldson, that you told the agent that Mr. O’Keefe suggested that the minutes be altered? A: (No response)

Q: Didn’t you tell the agents that? A: No, I did not.

Q: Your testimony under oath is that on March 3, 1995, you did not tell Agent Susan Phillips that Mr. O’Keefe suggested that the BCI shareholders minutes be altered to make it appear that Donaldson had authority to enter into the contract; did you make that statement to the F.B.I.? A: At--I--I did, yes.

Q: And that was a false statement, wasn’t it sir? A: It was a false statement.

Q: And you lied to the FBI, did you not? A: Yes I did.

Based on this exchange, the court found that Donaldson uttered four possible falsehoods. First, in court on cross-examination, Donaldson falsely accused O’Keefe of participating in altering the minutes. Second, in his guilty plea, Donaldson agreed with the factual basis of the plea, which contained the statement falsely suggesting that O’Keefe participated in the alteration of the

-4- In a sidebar conference that followed, the government denied that

Donaldson had ever accused O’Keefe of helping to alter the minutes

and stated that the FBI 302 report was mistaken if it attributed

the statement to Donaldson, an explanation that the court rejected.

On redirect, the government half-heartedly attempted to bolster

Donaldson’s credibility. After Donaldson left the stand, defense

counsel moved to strike the testimony of Donaldson, which the court

refused to do. In closing arguments, the defense highlighted

Donaldson’s impeachment, and the court included a strong statement

admonishing the jury to consider carefully the credibility of

witnesses in its jury instructions. Despite Donaldson’s testimony

and impeachment, the jury convicted O’Keefe and his co-defendants.

After trial, the defense made various post-trial motions,

including a motion for new trial. Chief Judge Sear conducted a

hearing on the motions at which the parties presented legal

arguments but no evidence. The court granted the new trial motion

because it found that Donaldson falsely accused O’Keefe of

participating in the alteration of the minutes, and that the

government knew about the falsehood because the two prosecutors

gave inconsistent answers as to whether they learned of the

falsehood prior to trial. The court also found that the long,

drawn-out pauses before Donaldson answered the defense counsel’s

minutes. Third, if Donaldson did not previously falsely accuse O’Keefe of participating in the alteration of the minutes, then he uttered a falsehood when he admitted in court that he had accused O’Keefe of participating in the alteration of the minutes. Finally, the court found that Donaldson uttered a falsehood when he stated that the government did not know, prior to trial, that he had lied concerning altering the minutes.

-5- questions in the colloquy set out above supported an inference that

the government knew about Donaldson’s false accusation prior to

trial. Several other factors reinforced the court’s finding that

Donaldson’s false testimony warranted a new trial. First, the

court found that the government’s release of the FBI 302 reports to

the defense complied with the Jencks Act, but did not comply with

the government’s obligations under Brady v. Maryland,

,

,

(1963). Second, another key

government witness, Moore, often changed his testimony, which

became significant in light of Donaldson’s false testimony. Third,

the court found that the prosecution had redrafted the indictment

in an attempt to mislead the defense by deleting counts connected

to the minutes.

After granting the new trial, Chief Judge Sear disqualified

himself from further involvement. This case was then assigned to

Judge Mary Ann Vial Lemmon, and the government filed a motion for

reconsideration of the order granting new trial (“motion for

reconsideration”). Judge Lemmon transferred the case back to Chief

Judge Sear, who denied both the government’s motion to enforce

recusal and the motion for reconsideration. This appeal timely

followed.

II

Prior to consideration of the merits, we resolve various

challenges to our jurisdiction in this case. These jurisdictional

challenges center on the government’s notice of appeal, whether

Chief Judge Sear appropriately ruled on the motion for

-6- reconsideration after his recusal, and if we find that Chief Judge

Sear should not have ruled on the motion for reconsideration,

whether we must remand to Judge Lemmon to decide the motion for

reconsideration.

A

O’Keefe argues that we have no jurisdiction to hear this

appeal because the notice of appeal filed by the government fails

to comport with the requirements of

, which governs

interlocutory appeals by the government from orders granting new

trial.3 The government’s notice of appeal specified the denial of

the reconsideration of the order granting new trial and the order

mooting all other motions filed by the government, including the

government’s motion to enforce recusal of Chief Judge Sear.

O’Keefe argues that because the government appealed the denial of

the reconsideration of the order granting new trial rather than the

order granting new trial, § 3731 does not permit jurisdiction over

this appeal.

We rejected a similar jurisdictional challenge in United

States v. Greenwood,

(5th Cir. 1992). In response to

the same type of argument raised by O’Keefe, the court stated that

3

(1994) provides in relevant part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court . . . granting a new trial after verdict or judgment . . . except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

-7- [a]lthough in form the Government’s notice of appeal was from the district court’s July 30 denial of the motion to reconsider, in substance the appeal is one from the district court’s sentences imposed in the spring of 1991. . . . [S]o long as a notice of appeal puts the other side on notice that the final judgment is the subject of the appeal, a technical defect in the notice of appeal is not fatal (citations omitted).

Greenwood,

n.13 (emphasis in original); see also

9 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 203.17[2], at 86-87

(2nd ed. 1996) (“[A]s long as the intent to appeal from a specific

judgment can be fairly inferred from the notice and the appellee is

not misled by the mistake,” the jurisdiction of the appellate court

is not barred by mistake in notice of appeal.).

Here, we find that O’Keefe was put on notice by the

government’s notice of appeal and that he was not prejudiced by the

misstatement in the notice of appeal. First, appeal of an order

granting new trial can be fairly inferred from a notice appealing

denial of reconsideration of that order because the connection

between the two is clear and direct. See Matute v. Procoast Nav.

Ltd.,

(3rd Cir. 1991) (finding link between an

order of dismissal and an order denying motion for reconsideration

of the order of dismissal to be clear and direct). Moreover, both

the government and O’Keefe fully briefed the merits of this appeal,

which would imply that O’Keefe was both on notice that the

government intended to appeal the order granting new trial and that

he was not prejudiced as a result of the misstatement in the

government’s notice of appeal. See, e.g., Foman v. Davis,

,

,

(1962); Kruso v.

International Tel. & Tel.,

, 1423 (9th Cir. 1989).

-8- The order granting new trial and the motion for its reconsideration

are also inextricably linked because we cannot analyze whether the

district court abused its discretion in denying the motion for

reconsideration without considering the merits of the order

granting new trial. Thus, as the government’s intent to appeal the

order granting new trial can be fairly inferred from its noticing

the district court’s denial of reconsideration of that order, and

as O’Keefe was not prejudiced by the misstatement, the mistake in

the notice of appeal does not bar our exercising jurisdiction in

this case.4

B

The government argues that Judge Sear erred in failing to

enforce his recusal and in denying the motion for reconsideration.5

4 O’Keefe alternatively argues that noticing the motion for reconsideration without mentioning the order granting new trial resulted in the government waiving appeal on the issue of the order granting new trial. A notice of appeal “must designate the judgment, order, or part thereof appealed from.” FED. R. APP. P. 3(c). While a policy of liberal interpretation of notices of appeal is the rule when the intent to appeal an unmentioned or mislabeled ruling is clear and no prejudice will result to the opposing party, when only a specified judgment or part thereof is noticed, the notice of appeal is generally strictly construed. See C.A. May Marine Supply Co. v. Brunswick Corp.,

, 1055- 56 (5th Cir. 1981). We found above that O’Keefe clearly had notice that the government intended to appeal from the order granting new trial when it appealed from the denial of the reconsideration of that order and that no prejudice would result to O’Keefe because the merits of this case were fully argued in the briefs he presented to this court. Accordingly, we hold that the government did not waive its appeal of the order granting new trial as a result of any defects in its notice of appeal. 5 Chief Judge Sear stated that

[b]ecause of the sensitive nature of the court’s inquiry concerning conduct of government counsel, the court’s personal participation and questioning of counsel in

-9- O’Keefe argues that Chief Judge Sear properly refused to enforce

the recusal because, quite simply, Judge Lemmon could not

reconsider what Judge Lemmon had not considered in the first place.

Once a judge recuses himself from a case, the judge may take

no action other than the ministerial acts necessary to transfer the

case to another judge, even when recusal is improvidently decided.

See Doddy v. Oxy USA, Inc.,

(5th Cir. 1996)

(holding that judge erred in vacating recusal order after recusing

herself); Moody v. Simmons,

(3rd Cir. 1988)

(stating that judge may only perform the “housekeeping” duties

necessary to transfer a case to another judge after recusing

himself from a proceeding). A ministerial act is usually defined

as an act that is essentially clerical and does not involve the

exercise of discretion or judgment. See United States ex rel.

McLennan v. Wilbur,

,

,

(1931) (describing a ministerial duty as one in which

“the obligation to act [is] peremptory, and plainly defined”);

Moody,

(holding that orders converting Chapter 11

bankruptcy to Chapter 7 bankruptcy, disqualifying counsel, vacating

a contingent fee agreement, and making findings attacking counsel

exceeded “housekeeping” orders). A district court necessarily has

discretion as to whether to reopen a case in response to a motion

connection with that inquiry, and the findings of the court resulting from that inquiry, the court feels compelled to recuse itself from further handling of this matter in accordance with

.

United States v. O’Keefe, No. 96-31181, at 71 (E.D. La. Aug. 15, 1996) (order granting new trial) (hereinafter “Order”).

-10- for reconsideration. See Lavespere v. Niagara Mach. & Tool Works,

Inc.,

(5th Cir. 1990). Thus, when Chief Judge

Sear ruled on the motion for reconsideration, he performed a

discretionary act, not a ministerial act.

O’Keefe (as Chief Judge Sear noted below) essentially argues

that an exception from the bright-line rule for recusals described

above should be created for motions for reconsideration because a

judge cannot reconsider what that judge has not considered

previously. Toward this end, O’Keefe cites McRae v. United States,

(D.C. Cir. 1969), for the proposition that a district

court judge cannot reconsider matters previously decided by another

district court judge, and that the proper method for resolution of

this situation is appeal to a higher court. This argument ignores

the many instances in which one district court judge must

reconsider an order previously granted by another judge because of

the first judge’s death, illness, or disqualification. See TCF Film

Corp. v. Gourley,

(3rd Cir. 1957). It also

overlooks the law of the case doctrine, which encompasses

situations in which one judge has rendered an order or judgment and

the case is then transferred to another judge. See Abshire v.

Seacoast Products,

(5th Cir. 1982). Under the

law of the case doctrine and general principles of comity, a

successor judge has the same discretion to reconsider an order as

would the first judge, but should not overrule the earlier judge’s

order or judgment merely because the later judge might have decided

matters differently. See Loumar, Inc. v. Smith,

, 762-

-11- 63 (5th Cir. 1983) (stating that under the law of the case

doctrine, a second court should follow a ruling made by an earlier

court unless the prior decision was erroneous, is no longer sound,

or would create injustice). Thus, even though Judge Lemmon did not

consider the new trial motion initially, Judge Lemmon would have

been able to consider the motion for reconsideration and, as such,

Chief Judge Sear erred when he ruled on the motion for

reconsideration.6

C

The “harmless error” standard is used to determine whether

orders that a judge issues after the judge has, or should have,

recused himself must be vacated. See Liljeberg v. Health Serv.

Acquisition Corp.,

,

,

(1988); Doddy,

; El Fenix de Puerto

Rico v. The M/Y Johanny,

(1st Cir. 1994)

6 We recognize that our ruling today may put one district judge in the somewhat uncomfortable position of having to pass judgment on the discretionary rulings of another judge in the future. However, the values underlying

, including “protecting the litigants’ constitutional entitlement to an unbiased adjudication and the public’s perception of the integrity of the judicial process” demand no less. See Doddy,

. Judges have, moreover, under law of the case doctrine experience reviewing the discretionary rulings of other judges, and we are confident that they will be able to carry out any additional duties resulting from our ruling today. A contrary result, we believe, would mean that when a judge has to recuse himself, the parties lose the option of filing a motion for reconsideration, something that we are not inclined to find, both because of the impact on the parties and because reconsideration may obviate the need to appeal. See Greenwood,

. No such problem exists in this case, of course, as we vacate the order granting new trial and only remand for Judge Lemmon to hear O’Keefe’s remaining arguments for new trial that Chief Judge Sear declined to decide after he granted a new trial based on the deprivation of due process.

-12- (concluding that “the need for finality and a common-sense aversion

to frittering away scarce judicial resources militate against an

inflexible rule invalidating all prior actions of a judge

disqualified under § 455(a)”). Under the “harmless error” test, we

examine: (1) the risk of injustice to the parties in this

particular case, (2) the risk that denial of relief will produce

injustice in other cases, and (3) the risk of undermining the

public’s confidence in the judicial process. See Liljeberg,

,

; Doddy,

. As we

explain below, we conclude that it is unnecessary to vacate Chief

Judge Sear’s ruling and remand for Judge Lemmon to rule on the

motion for reconsideration because Chief Judge Sear’s ruling on the

motion for reconsideration was harmless error.7

Applying the three-part harmless error test, we first note

that little risk of injustice to the parties will result from not

vacating the denial of the motion for reconsideration and remanding

for reconsideration by Judge Lemmon. The record is sufficient for

us to review the order granting new trial. Our review of the order

granting a new trial and the denial of the motion for

reconsideration under an abuse of discretion standard, United

7 Another option is also available: we could hold the appeal in abeyance and remand the motion for reconsideration to Judge Lemmon for her to rule on the motion for reconsideration. In the event that Judge Lemmon vacated the order granting new trial, this appeal would then become moot. Although our decision in Greenwood could arguably be read to endorse such an approach, see Greenwood,

, as the record in this case is fully developed, very little would be gained by remanding and waiting for the district court’s ruling on reconsideration rather than reviewing the order granting new trial ourselves now.

-13- States v. Pankurst,

(5th Cir. 1997), is only

slightly more deferential than a district court’s review under the

law of the case doctrine. See Abshire, 688 F.2d at 837 (holding

that a successor judge should generally treat an order in a case

transferred by another judge with deference). Moreover, were we to

vacate Chief Judge Sear’s order denying the motion for

reconsideration, then the motion for reconsideration would still be

pending, and we would have to remand for Judge Lemmon to rule on

that motion. See Southland Indus. v. Federal Communications

Comm’n,

(D.C. Cir. 1938) (holding that a decision is

not final until an application for reconsideration has been

decided). Although the need for an appeal to this court might well

be obviated by Judge Lemmon’s decision, it is also possible that

Judge Lemmon might deny the motion for reconsideration, which would

then produce yet another appeal on the merits of the appeal now

before us. Further, both the government and O’Keefe have fully

discussed the merits of this case in their briefs, which, when

considered together with the other facts we adduced above, leads us

to conclude that neither party would be prejudiced by our deciding

the merits of this appeal without remanding to Judge Lemmon for a

ruling on the motion for reconsideration.

Second, our decision today aids, rather than prejudices

justice in other cases because it clarifies an unclear area of the

law and serves as a caution to district court judges of the

importance of taking no discretionary actions after recusal. It

was not until 1984 that

was amended to permit the

-14- government to appeal the interlocutory grant of a new trial. PUB.

L. NO. 98-473, § 1206,

(1984) (codified at

). Liljeberg, which established the three-part harmless

error standard for review of decisions made by a judge after

recusal becomes appropriate, was not decided until 1988. Liljeberg

v. Health Serv. Acquisition Corp.,

,

,

(1988). Moody, the first major case concluding

that a judge could take no action after recusal other than to

perform ministerial acts, was decided in the same year, and we only

reached the same conclusion in December of 1996, after Chief Judge

Sear had denied the reconsideration motion in this case. Doddy v.

Oxy USA, Inc.,

(5th Cir. 1996); Moody v. Simmons,

(3rd Cir. 1988). Thus, our decision today aids justice in

other cases by alerting judges to the importance of taking no

further discretionary actions after recusal.

Finally, there is little risk of undermining the public’s

confidence in the judicial process. While in some cases vacation

of orders issued by a judge will restore public confidence in the

legal system, see United States v. Jordan,

(5th Cir.

1995), other courts have held that decisions that are based on

technicalities and do not reach the merits of the case increase

public distrust of the legal system. See Parker v. Connors Steel

Co.,

(11th Cir. 1988). A pragmatic approach

should be taken to the notion of harmless error so that when in

doubt, a court can reach the merits of an appeal. See, e.g., Brown

Shoe Co. v. United States,

,

,

-15-

(1962) (stating that “[a] pragmatic approach to the

question of finality has been considered essential to the

achievement of the ‘just, speedy, and inexpensive determination of

every action’” (quoting FED. R. CIV. P. 1)). Accordingly, we hold

that Chief Judge Sear’s ruling on the motion for reconsideration

after recusal was harmless error and does not have to be vacated.

The result of this conclusion is that with all of the challenges to

our jurisdiction cleared away, we now proceed to a resolution of

this appeal on the merits.

III

“[I]t is established that a conviction obtained through use of

false evidence, known to be such by representatives of the State,

must fall under the Fourteenth Amendment. . . . The same result

obtains when the State, although not soliciting false evidence,

allows it to go uncorrected when it appears.” Napue v. Illinois,

,

,

(1959).

A Napue violation may occur not only when the prosecuting attorney

knows that a witness’s testimony is false, but also when another

government attorney knows of the false testimony and does nothing

to correct it. See Giglio v. United States,

,

,

(1972). False testimony for these

purposes includes testimony that affects only the credibility of a

witness. Napue,

,

. Thus, the

grant of a new trial based upon a Napue violation is proper only if

(1) the statements in question are shown to be actually false; (2)

the prosecution knew that they were false; and (3) the statements

-16- were material. United States v. Blackburn,

(5th

Cir. 1993). On appeal, the government argues that none of these

three elements exists.

We review an order granting new trial under an abuse of

discretion standard. United States v. Pankurst,

(5th Cir. 1997). This standard is necessarily deferential to the

trial court because we have only read the record, and have not seen

the impact of witnesses on the jury or observed the demeanor of the

witnesses ourselves, as has the trial judge. See United States v.

Boyd,

(7th Cir. 1995). Questions of law, however,

are reviewed de novo. Munn v. Algee,

(5th Cir.

1991). On mixed questions of law and fact, we review the

underlying facts on an abuse of discretion standard, but the

conclusions to be drawn from those facts de novo. Ornelas v.

United States, __ U.S. __,

,

(1996). The Napue test))specifically the issue of materiality))is

just such a mixed question of law and fact, and so we undertake an

independent appellate analysis to determine whether the facts found

by the trial court rise to the level of the applicable legal

standard.8

8 As the Supreme Court noted in Ornelas, “[i]ndependent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles.” Id. at __,

. Thus, while perforce we agree with the Seventh Circuit’s conclusion in Boyd that deference should be given to the district court’s finding of facts, we would be remiss in our duty as an appellate court if we did not decide whether those facts satisfied the applicable legal standard. See also Miller v. Fenton,

,

,

(1985) (When the “relevant legal principle can be given meaning only through its application to the particular circumstances of a

-17- The Supreme Court has recently defined materiality in terms of

a “reasonable probability” of a different outcome. Kyles v.

Whitley,

,

,

(1995). Such a reasonable probability results when nondisclosure

places the case in a different light so as to undermine confidence

in the verdict.

,

. The relevant

inquiry examines the challenged evidence collectively, not on an

item-by-item basis.

,

. “To say

that an error did not contribute to the verdict is, rather, to find

that error unimportant in relation to everything else the jury

considered on the issue in question, as revealed by the record.”

Yates v. Evatt,

,

,

(1991).

It is axiomatic that not every lie is material. Along with

other circuits, we have limited material lies to those that occur

as a part of the prosecution’s case. See Hudson v. Blackburn,

(5th Cir. 1979); see also United States v. Aichele,

(7th Cir. 1991) (applying same rule). The

prosecution has a duty only to “refrain from knowingly presenting

perjured testimony and from knowingly failing to disclose ‘that

testimony used to convict a defendant was false.’” Aichele,

(quoting United States v. Endicott,

(9th Cir. 1989)). Thus, when the defense elicits the alleged

perjury on cross-examination, no material falsehood has occurred

case, the Court has been reluctant to give the trier of fact’s conclusions presumptive force, and in so doing, strip a federal appellate court of its primary function as an expositor of law.”).

-18- because the government has not itself knowingly presented false

testimony.

We have adopted this position because it is the

duty of the jury to determine the credibility of the witnesses.

See Little v. Butler,

(5th Cir. 1988) (stating that

“prosecutors are seldom able to vouch for their [accomplice

witnesses’] credibility” and that courts should instruct juries to

carefully scrutinize the testimony of such witness). Materiality,

stated another way, occurs when the falsehood results in “a

corruption of the truth-seeking function of the trial process.”

United States v. Agurs,

,

,

(1975); United States v. Meinster,

(4th Cir. 1980) (holding that underlying purpose of Napue and

Giglio is not to punish prosecutor for the misdeeds of a witness,

but rather to ensure that jury is not misled by any falsehoods).

Not all falsehoods are material partially because of our

concern with preserving the adversarial system: it is the

prerogative of defense counsel to plan his or her cross-examination

strategy, and undue clarification or interruption by the

prosecution might interfere with that strategy. See Mills v.

Scully,

(2nd Cir. 1987). Thus, courts have

been extremely reluctant to find a deprivation of due process when

the prosecution has provided the defense with the necessary

information and it can utilize the information, but decides, for

tactical reasons, not to use such information. See United States

v. Bethley,

(5th Cir. 1992) (rejecting claim of

Napue violation when government provided defendant with witness’s

-19- rap sheets and plea agreement in related case and defendant’s

counsel failed to ask question regarding witness’s denial of past

convictions). However, even when the defense is aware of the

falsity of the testimony, a deprivation of due process may result

when the information has been provided to the defense but the

government reinforces the falsehood by capitalizing on it in its

closing argument, see United States v. Sanfilippo,

(5th Cir. 1977), or the defense is unable to utilize the

information, see

, or when the government thereafter

asks misleading questions, United States v. Barham,

,

243 n.17 (5th Cir. 1979). Thus, materiality is a method of

maintaining the equal playing field between the prosecution and the

defense necessary to allow the jury to perform its truth-seeking

function.

The trial court concluded that although some of Donaldson’s

falsehoods were revealed to the jury, the “true nature and scope of

Donaldson’s perjury was never disclosed or corrected by the

government, or revealed on cross-examination by the defendants.”

Order at 71. The nature and scope of these falsehoods went

unrevealed because the government never stated until after trial

why it amended the indictment against O’Keefe, why it permitted the

cross-examination of Donaldson to go forward with the FBI 302

report that it knew to be incorrect, and why the two prosecutors

gave inconsistent answers as to when they learned of the

falsehoods. The long, drawn-out pauses before Donaldson answered

the defense’s questions during the critical cross-examination

-20- colloquy also supported the inference that Donaldson had previously

told the government about his false accusation of O’Keefe.

Further, the court found that the government improperly bolstered

the credibility of Donaldson on redirect and during its closing

argument by eliciting testimony that even though O’Keefe had not

participated in the alteration of the minutes, he had knowingly

incorporated them into an affidavit presented to a Louisiana state

court. Finally, the court concluded that the prosecution thought

that the testimony concerning the minutes was material because it

had changed the indictment in an attempt to cover up the falsehood

and to mislead defense counsel. On appeal, the government argues

that all of Donaldson’s falsehoods were revealed to the jury, and

that even if they were not, those falsehoods were not material to

the jury’s verdict because Donaldson’s testimony was overwhelmingly

corroborated by other evidence and witnesses.

We first believe that the trial court abused its discretion

when it made the factual finding that the government changed the

indictments in an attempt to mislead the defense. This factual

finding was an abuse of discretion because whether or not the

government attempted to mislead the defense, the defense had too

much knowledge of the minutes to be misled. The record shows that

defense counsel and the government conferred prior to trial

regarding the indictment as a result of various pretrial motions

made by the defense contesting the statement in an earlier version

of the indictment charging that O’Keefe had knowingly included the

false minutes in an affidavit he presented to a Louisiana state

-21- court. The order granting new trial itself notes that the defense

took depositions concerning the minutes and strongly contested the

charge in the indictment concerning O’Keefe’s knowing incorporation

of the minutes into the affidavit. The government sent the defense

a letter conceding that Donaldson had altered the minutes by

himself.9 Therefore, this indictment change and the documents

provided to the defense, when combined with the FBI 302 report, put

defense counsel on notice of possible falsehoods or inconsistencies

uttered in the past by Donaldson, even if the defense did not know

the precise reason the indictment was changed. As a result, we

hold that the district court abused its discretion by finding that

the prosecution altered the indictment in an attempt to mislead the

defense because even if the prosecution made such an attempt, the

defense had too much knowledge of the minutes to be misled.

With respect to the district court’s legal conclusion of

materiality, falsehoods, to the extent that any were uttered,

occurred as a result of the defense’s cross-examination, not from

testimony elicited by the prosecution. Once those falsehoods

emerged, the defense had total leeway in cross-examining Donaldson

and used the information provided by the prosecution to powerful

9 Affidavits by both government prosecutors in this case and other members of the prosecutorial team state that the indictment was republished to narrow the issues in contention, not to mislead the defense. These affidavits are part of the record on appeal, FED. R. APP. P. 10(a), because they were included with the government’s reconsideration motion. In light of Chief Judge Sear’s specific refusal to find that the government attorneys either suborned perjury or committed misconduct, these affidavits are one piece of evidence to be considered in deciding whether the government attempted to mislead the defense by republishing the indictment.

-22- effect. See United States v. Adebayo,

(7th

Cir. 1993) (rejecting Napue claim when false testimony was elicited

by defense counsel on cross-examination because the false testimony

was not part of government’s case, defense counsel had total leeway

to cross-examine witness, and jury instructions included cautionary

statement). A review of the cross-examination set out in the

margin above gives little doubt that the defense ably exploited the

FBI 302 report that the government provided to the defense prior to

Donaldson’s direct testimony and which provided the basis for the

defense’s devastating cross-examination of Donaldson. Even if it

is contended that the government had a duty to correct any

falsehoods made during the course of this cross-examination that

were not corrected by the concessions that Donaldson himself made,

any attempt by the prosecution to intercede during this cross-

examination would have actually harmed the defense by depriving the

jury of the full, dramatic effect. See United States v. Brand,

(1st Cir. 1996) (holding that government had no

duty to correct false statement by key witness denying promise of

leniency in exchange for testimony because of clarifying admissions

by witness in presence of jury). There were also contemporaneous

attempts by the government to explain the inconsistencies in

Donaldson’s testimony during sidebar conferences, although we agree

with Chief Judge Sear that those explanations were unsatisfying.

We find that the falsehoods were sufficiently exposed before

the jury to enable the jury to weigh those falsehoods in its

deliberations. Defense counsel moved, immediately after Donaldson

-23- left the stand, to have his entire testimony stricken from the

record, but Chief Judge Sear refused, stating that Donaldson’s

credibility was for the jury to decide. Defense counsel then made

impeachment of Donaldson the centerpiece of their closing

arguments.10 Chief Judge Sear also included a strong cautionary

statement in the jury instructions. Thus, the jury knew that

Donaldson had lied either when he stated that he had not previously

falsely accused O’Keefe of participating in the alteration of the

minutes or when he stated that he had accused O’Keefe of

participating in altering the minutes. The jury was also able to

10 The various defense counsel representing the various defendants made the following statements in the course of their closing arguments:

Attorney Ashley: Is it inconceivable, as you sit there, ladies and gentlemen, that after Charles Donaldson lied to this litany of people, including a federal judge, a federal prosecutors, is it inconceivable that he lied to these folks? . . . No, it’s not inconceivable at all.

Attorney Martzell: Mr. Donaldson. I made a little calculation of the legal experience of the people on this side of the bench. I have not included the Judge’s years at the bar. Something over 200 years of legal experience sitting out here. I guaranty, none of us ever have in the past or will have the unique experience that we had here of having a man admit under oath that he falsely accused one of the Defendants and didn’t tell the government about it.

Attorney Simmons: And it’s been suggested that he didn’t lie before you. When you go back there and you can deliberate any way you want, but see if you’ve been mislead by Mr. Donaldson. What were you thoughts at the time direct testimony was over? Starting to sound credible? What were your thoughts after cross- examination? Incredible. You were mislead. You were mislead hand-in-hand with the Prosecution. The question is whether they may know about it, but you were mislead by at least Mr. Donaldson.

-24- evaluate the long, drawn-out pauses before Donaldson answered the

defense’s questions. See United States v. Grosz,

(5th Cir. 1996) (stating that sufficient exploration and

correction of a falsity by the defense may render the falsehood

immaterial by negating reliance on the falsehood by the jury).

Accordingly, we find that the disclosure to the jury of Donaldson’s

falsehoods coupled with the prosecution’s disclosures to the

defense prevented those falsehoods from being material because

enough information was provided to the jury to enable them to

adequately perform their fact-finding function and to maintain the

level playing field between the prosecution and the defense.11

Defense counsel argued in their motion for new trial and

before us that they would have proceeded differently, that they

would have attempted to impeach the government as well as Donaldson

and would have discussed how the factual basis for the guilty plea

was selected, had they known the full facts surrounding Donaldson’s

11 This finding that the falsehoods were not material is not negated by the prosecution’s half-hearted attempt to bolster the credibility of Donaldson on redirect and in closing arguments. Any such bolstering as may have occurred does not rise to the level of bolstering in cases where we have reversed the denial of a new trial. See Sanfilippo,

. Moreover, we do not disagree with the trial court’s conclusion that the government was aware of Donaldson’s falsehoods prior to trial based on the inconsistent answers of the two government prosecutors as to when they were aware that Donaldson had testified falsely. We think that even if the government had such knowledge prior to trial, Donaldson’s falsehoods were not material as a matter of law because the falsehoods were fully explored before the jury. Finally, the significance of the long, drawn-out pauses before Donaldson answered O’Keefe’s questions during the critical cross-examination colloquy is precisely the kind of issue that the jury can weigh, and should not be a basis for a deprivation of due process based on the government’s knowing use of false testimony.

-25- false testimony at the time. We disagree on several counts.

First, the defense repeatedly characterized Donaldson as being

completely impeached during its closing arguments. Second, the

testimony of Donaldson was overwhelmingly corroborated by other

witnesses, and the falsehoods occurred on collateral matters. See

Kopycinski v. Scott,

(5th Cir. 1995) (holding that

when withheld evidence seriously impeaches key witness’s testimony

on an essential issue, corroborating evidence should be examined to

determine materiality of alleged falsehood). Although it is

immaterial whether the falsehood concerns an essential element of

the government’s case or only a collateral matter affecting

credibility, United States v. Barham,

(5th Cir.

1979), given the degree of impeachment of Donaldson on the stand,

any further impeachment of the type that the defense now desires

would merely have been cumulative. See Guam v. Palomo,

, 372 (9th Cir. 1994) (finding an alleged falsehood nonmaterial

when “additional impeachment value gained would have served only to

emphasize a fact already established on cross-examination”).

Third, although the burden to correct false testimony is on the

government, the defense may have waived impeachment of the

government by not calling FBI Agent Phillips, the author of the

notes on which the FBI 302 report was based and who was present in

court at various times. See Bethley,

. Finally,

Chief Judge Sear indicated that he was prepared to deny the motion

for new trial prior to argument on the motion, but the answers of

government attorneys at that argument convinced him otherwise. The

-26- affidavits of both government attorneys and other members of the

prosecutorial team that the government attached to its motion for

reconsideration, in the absence of a finding of prosecutorial

misconduct, suggest that the government’s answers at the argument

of the motion for new trial were inartful but not duplicitous.

A review of cases finding a violation of Napue shows that the

falsehoods in those cases have usually been far more serious than

those that occurred in this case. We have found a violation of

Napue in cases when there was a material discrepancy between the

testimony of government witnesses and defense witnesses, the

government was aware that its witnesses committed perjury on the

stand but such perjury was not disclosed to the jury, and the

credibility of the witnesses was the key to the jury’s

determination of guilt or innocence. Barham,

.

We reversed because not only was the jury shielded from the fact

that the witnesses had committed perjury, but it was also shielded

from the fact that the witnesses had attempted to manipulate the

jury’s decision-making process by creating a false impression.

. Even in such an apparently egregious situation, we were

still loath to grant a new trial. We found that the government had

provided defense counsel with a letter disclosing the plea bargains

that the witnesses had entered into, but that the counsel had

inexcusably overlooked the letters. While such disclosure would

normally have been sufficient to prevent a Napue violation, the

government’s posing of misleading questions to the witnesses

negated its disclosure, and that created the deprivation of due

-27- process.

at 243 n.17.

The grant of a new trial is necessarily an extreme measure,

because it is not the role of the judge to sit as a thirteenth

member of the jury. See State v. Ladabouche,

(Vt. 1985) (stating that such a formulation would allow the judge

to order a retrial when he disagreed with the outcome). The

judge’s job, in connection with an alleged Napue violation, is to

grant a new trial when the fact-finding function of the jury has

been corrupted by a material falsehood of which the government was

aware. Based on the facts of this case, we cannot find that the

jury was prevented from performing its essential function.

Therefore, we do not find that there is a reasonable probability

that the jury would have reached a different outcome even had it

been fully aware of all of the alleged inconsistencies and

falsehoods in Donaldson’s testimony. As a result, the falsehoods

were not material and no Napue deprivation of due process occurred.

IV

Although we find that no violation of Napue occurred, we will

nevertheless uphold the district court’s order granting new trial

if it is in the “interests of justice.” FED. R. CRIM. P. 33. These

“interests of justice” may be based on the trial judge’s evaluation

of witnesses and weighing of the evidence. See Tibbs v. Florida,

,

,

(1982). Although grant or denial of the motion is entrusted to the

sound discretion of the judge, motions for new trial are not

favored, and are granted only with great caution. United States v.

-28- Hamilton,

(5th Cir. 1977). “The remedy of a new

trial is rarely used; it is warranted ‘only where there would be a

miscarriage of justice’ or ‘where the evidence preponderates

heavily against the verdict.’” United States v. Andrade,

(1st Cir. 1996). Chief Judge Sear principally based the

grant of new trial on the finding of a violation of Napue, but this

finding was reinforced by the delayed release of FBI 302 reports

(for both Donaldson and Moore) to the defense, the “cloud” cast

over the testimony of Moore by the changes in his testimony, and

the prosecution’s attempt to mislead the defense by changing the

indictment. Without the Napue violation, we hold that it was an

abuse of discretion to grant a new trial based on these findings.

First, the trial court noted that the FBI 302 reports were

provided to the defense within the time mandated by the Jencks

Act,12

et seq., but stated that it could not

“conclusively find that the production of the reports during trial

did not adversely affect the court’s ability to reach a just

conclusion, particularly in light of the government’s conduct in

connection with the FBI 302 reports of Charles Donaldson.” Order,

at 54. The argument is not that the government suppressed

evidence, see Brady v. Maryland,

,

,

(1963), but that the disclosure of the

12 The Jencks Act requires the government to produce any statements made by a witness concerning the subject matter on which the witness has testified that are in the possession of the government after the witness has testified on direct examination in a criminal trial prosecuted by the federal government.

(b); FED. R. CRIM. P.26.2.

-29- reports was so delayed that the defendants were unable to use them

effectively at trial and the court’s ability to reach a just result

was impaired. See United States v. Campagnulo,

, 861-

62 (5th Cir. 1979). When evidence is disclosed at trial in time

for it to be put to effective use, a new trial will not be granted

“simply because it [the Brady evidence] was not disclosed as early

as it might have and, indeed, should have been.” United States v.

McKinney,

(5th Cir. 1985). Moreover, even if

the disclosure of Brady material was impermissibly delayed, such

evidence must still be found to be material. See Kyles v. Whitley,

,

,

(1995).

In this case, the government submitted the FBI 302 report of

Moore to the court for an in camera review after cross-examination

had begun, following which the court gave the report to the

defense. Trial was recessed for the remainder of that day to allow

the defense time to prepare. Donaldson’s FBI 302 report was turned

over to the court for in camera review prior to the beginning of

his direct testimony, and the court then handed it over to the

defense. During the more than one day of Donaldson’s testimony,

the defense was able to review the testimony. Although turning

these reports over to the defense earlier would have certainly

avoided the delays during trial, based on our review of the record

and the absence of any affirmative finding (other than the

conclusion) by Chief Judge Sear that the delayed disclosure of the

reports may have impaired O’Keefe’s ability to effectively cross-

examine Donaldson and Moore, we cannot find that the delayed

-30- disclosure of the FBI 302 reports violated Brady. See Lawrence v.

Lensing,

(5th Cir. 1994); United States v.

Randall,

(5th Cir. 1989); McKinney,

. As we have extensively discussed above, O’Keefe’s attorneys

used Donaldson’s FBI report to conduct a devastating cross-

examination. Defense counsel were also able to bring out

inconsistencies in Moore’s testimony as well, although he did not

perjure himself. Thus, without viewing the delayed disclosure in

the light of a Napue violation, we find that this basis for new

trial has little merit.

Next, the district court also found that the changes in the

testimony of Moore, another key government witness, cast a cloud

over his testimony, which, when viewed “in light of the

circumstances surrounding Donaldson’s testimony,” supported the

grant of a new trial. However, Chief Judge Sear also found that

O’Keefe could not point to any specific instances of perjury by

Moore, and that the changes in Moore’s testimony provided ample

grounds for cross-examination. No violation of Napue was alleged

in connection with Moore’s testimony, and these inconsistencies

were explored before the jury on cross-examination. Further, Chief

Judge Sear separately considered the inconsistencies in Moore’s

testimony as the basis for a new trial in another part of the order

granting new trial and concluded that the claims of O’Keefe with

regard to Moore’s testimony lacked merit. Thus, without being

viewed in the light of a Napue violation, this basis for new trial

also has little merit.

-31- Finally, the district court found that the prosecution’s

attempts to mislead defense counsel by altering the indictment, in

light of Donaldson’s testimony at trial, supported granting a new

trial. We have already discussed the changes in the indictment,

and have found that the district court abused its discretion in

finding that the government attempted to mislead the defense by

redrafting the indictment because the prominence of the minutes in

pretrial proceedings made it impossible for the government to have

misled the defense. Thus, this basis for new trial has little

merit.

Viewed as a whole, each of these three findings of the court

primarily relied upon the finding of a Napue violation because each

finding was discussed “in light of” the Napue violation. Taking

away the finding of a violation of Napue, we are unable to conclude

that the remaining grounds for grant of new trial meet our past

standards for grant of new trial or would be in the “interests of

justice.” Thus, we conclude that Chief Judge Sear abused his

discretion in granting a new trial. Accordingly, we vacate the

order granting a new trial.13

V

When Chief Judge Sear granted the motion for new trial, he

declined to address O’Keefe’s remaining arguments for new trial,

which included arguments based on the government’s voluntary

dismissal of five counts from the indictment after the government

13 In light of our vacation of the order granting new trial, we decline to address arguments concerning whether the grant of new trial should include Schmitz.

-32- had concluded its case, the alleged “marginal” nature of the

evidence, and the cumulative effect of all the grounds asserted in

all other defense motions. We accordingly remand to the district

court to hear these remaining arguments for new trial.

The government has suggested that if a remand is needed, the

case should be remanded to a judge outside the Eastern District of

Louisiana, relying on United States v. Jordan,

(5th Cir. 1995) (remanding case involving judicial disqualification

to district court outside original district). Such a remedy is

discretionary, and the exception rather than the rule. See

at

162 n.21 (Garza, Emilio, J., dissenting). It seeks to avoid

placing a district judge’s colleagues in the uncomfortable position

of passing on her previous rulings.

at 160 n.18. In Jordan,

the judge abused her discretion by failing to recuse herself prior

to sentencing the defendant after recusal had become appropriate

under § 455(a). Id. at 158. Here, we have already vacated the

order granting new trial, and Judge Lemmon will only review

O’Keefe’s remaining arguments for new trial, which does not require

her to pass judgment on any of Chief Judge Sear’s discretionary

rulings. In addition, the law of the case doctrine and general

principles of comity serve to respect and preserve the authority of

Chief Judge Sear. See, e.g., Loumar v. Smith,

(5th Cir. 1983); Abshire v. Seacoast Prod., Inc.,

(5th Cir. 1982). Therefore, we remand the case to Judge Lemmon.

For the foregoing reasons, the order granting new trial is

VACATED, and the case is REMANDED to Judge Lemmon to hear O’Keefe’s

-33- remaining arguments for new trial. The government’s motion to

remand this case to a court outside the Eastern District of

Louisiana is DENIED.

-34-